Court: Florida First District Court of Appeal
Case Nos.: 1D2023-2119 (fees), 1D2023-3022 (merits) — consolidated for disposition
Date: July 30, 2025
Lower Court: Circuit Court for Jackson County; Judge Ana Maria Garcia
Parties: Appellant on merits / Appellee on fees — Florida Caverns R.V. Resort, LLC, d/b/a Florida Caverns R.V. Resort at Merritt’s Mill Pond | Appellee on merits / Appellant on fees — Leavitt Recreation & Hospitality Insurance, Inc.
Counsel (Leavitt): Jorge L. Cruz-Bustillo, Michele A. Lo Presti (Chartwell Law, Miami); Albert J. Wollerman, Todd J. Sanders (Chartwell Law, Tallahassee)
Counsel (Florida Caverns): Jennifer A. Winegardner, Michael Rayboun, Elmer C. Ignacio (Rayboun Winegardner, PLLC, Tallahassee)
Panel: KELSEY, J. (opinion); NORDBY and LONG, JJ., concurring on dismissal of the fees appeal
Background
Florida Caverns owns and operates an RV park whose business depends on utility hook-up towers (“power stations”/pedestals) for electricity, water, sewer, and (in some sites) cable/Wi-Fi. In September 2018, after acquiring the park out of bankruptcy, owner Erwin Jackson worked with Leavitt Recreation & Hospitality Insurance (a broker specializing in RV parks) to place commercial property coverage. Jackson says he provided site maps showing 200+ serviced sites and requested coverage sufficient to protect the physical premises (not just business income).
A policy effective October 5, 2018 issued under the “RV Park and Campground Application.” It did not expressly list power-station coverage (or its exclusion). On October 10, 2018, Hurricane Michael struck, causing extensive pedestal damage. Leavitt emailed that the policy “may not have included” coverage for utility pedestals, and the insurer denied that portion of the claim.
Florida Caverns sued Leavitt for negligent failure to procure appropriate coverage, alleging a request for comprehensive premises protection that (by industry custom and past dealings) should have included power stations. Florida Caverns itemized $1,097,516.40 in direct power-station repair/rebuild costs (201 stations) and later obtained coverage (with another agency/insurer) that did include pedestal protection.
Leavitt answered with 26 affirmative defenses, admitting that the measure of damages in negligent-procurement is what would have been covered if obtained, and admitting that power-station coverage was available—while asserting Florida Caverns declined it to save premiums and/or should have noticed the omission post-issuance.
Trial Court
The circuit court granted summary judgment for Leavitt on the merits, reasoning Florida Caverns failed to produce an actual, pre-Michael policy that expressly covered power-station damage to prove availability. In a separate order, the court denied Leavitt’s proposal-for-settlement fees as ambiguous.
First DCA’s Decision
Merits (Case No. 23-3022) — Reversed
The First DCA held Florida Caverns did not need to produce a pre-loss policy expressly covering power stations at summary judgment. The record already contained competent evidence of availability, including:
- The broker’s own agent testifying that power-station coverage was available under the very policy program at issue and that he discussed it with the owner (Leavitt says the owner declined to avoid added premium; the owner denies ever declining).
- The owner’s testimony about industry custom, prior coverage for a different park, and post-loss placement including pedestals.
Florida Caverns’ theory is classic negligent procurement: if coverage was available and a reasonably prudent broker should have obtained or clearly warned it was missing, the broker can be liable for the difference between what should have been covered and what was. The court cited Florida law recognizing broker liability where an agent fails to procure requested coverage or fails to inform the insured that requested coverage was not obtained.
The First DCA distinguished the broker’s cases (e.g., Capelle, Mondesir, Gelsomino), noting those turned on deficits at trial after full discovery, not at the summary-judgment stage with ongoing discovery—and none involved an admission from the agent that the very coverage was available. Here, disputed facts (who said what; whether coverage was requested/declined; custom; damages) precluded summary judgment.
Holding: Summary judgment for Leavitt reversed; case remanded for further proceedings on the merits.
Fees (Case No. 23-2119) — Dismissed as premature
Because the merits judgment was reversed, Leavitt’s appeal of the order denying fees under § 768.79/R. 1.442 was not ripe. Dismissed.
Why This Case Matters
- No “silver-bullet policy” required at summary judgment. To show availability, plaintiffs can rely on agent admissions, industry custom, prior/post placements, and deposition testimony—especially where discovery is ongoing.
- Broker duties are practical, not paper-only. If a client reasonably requests comprehensive premises coverage, a specialist broker must meet the request or clearly warn what’s missing. Silence can be actionable.
- Measure of damages is counterfactual coverage. In negligent procurement, damages equal what the insured would have recovered but for the broker’s failure—key for large infrastructure items (like RV park pedestals).
Related Reading on Boltz Legal (approved links)
- Common Reasons for Home Insurance Disputes
- Insurance Law: How Attorneys Fight Big Insurance Companies
- What to Expect During a Lawsuit
- The 3 D’s of Insurance Woes: Delay, Deny, Defend — and How to Fight Them
- Florida Homeowners Insurance Complaints
Today’s Insight
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